Jocer Enterprises, Inc. v. Ernest Price at al., Court of Appeals of California, Second District, Division Four, 183 Cal. App. 4th 559 (April 5, 2010).
Facts: Allegedly, the defendant attorney provided negligent legal representation in trade secret and malicious prosecution actions and plaintiffs suffered damages as a result. The defendant attorney was absent from California during the year preceding the filing date of the plaintiffs’ malpractice action. The defendant attorney argued that plaintiffs’ action was time-barred under California’s one-year statute of limitations for legal malpractice actions. Plaintiffs’ contended the applicable statute of limitations was tolled during defendant’s absence from California.
Issue: Does an attorney’s absence from the state toll the statute of limitations for legal malpractice actions in California?
California’s statute of limitations for legal malpractice actions provides:
An action against an attorney for a wrongful act or omission, other than for actual fraud, arising in the performance of professional services shall be commenced within one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the facts constituting the wrongful act or omission, or four years from the date of the wrongful act or omission, whichever occurs first.
The limitations period contains certain tolling provisions which provide:
[I]n no event shall the time for commencement of legal action exceed four years except that the period shall be tolled during the time that any of the following exist:
(1) The plaintiff has not sustained actual injury;
(2) The attorney continues to represent the plaintiff regarding the specific subject matter in which the alleged wrongful act or omission occurred;
(3) The attorney willfully conceals the facts constituting the wrongful act or omission when such facts are known to the attorney, except that this subdivision shall toll only the four-year limitation; or
(4) The plaintiff is under a legal or physical disability which restricts the plaintiff’s ability to commence legal action.
With the exception of provision (3) each tolling provision applies to both the one-year and four-year limitations periods for legal malpractice actions.
In making a determination as to whether plaintiffs’ action was tolled during the time the defendant attorney was absent from California, the Court relied on Bledstein v. Superior Court. In Bledstein, the Court tolled plaintiff’s time to file a legal malpractice action for four years while plaintiff was incarcerated on criminal charges. The Court drew a parallell in the instant action and held that an attorney’s absence qualifies as a "legal disability" which, essentially, restricts plaintiff’s ability to pursue his malpractice action against his former attorney.
Lesson: In California, the limitations period for legal malpractice actions will be tolled during the time the defendant attorney is out of the state.